2008

Following up on a post from earlier today, here are the briefs in the Pono v. Molokai Ranch, Ltd. cert petition, which seeks HAWSCT cert review of the Intermediate Court of Appeals’ decision, reported at 119 Haw. 163, 194 P.3d 1126 (2008). The issue is whether Hawaii circuit (trial) courts have original jurisdiction to hear claims by a private plaintiff that another private party’s use of land is inconsistent with state zoning law, when county zoning authorities who administer the state zoning law say it is not. [Disclosure: we represent the respondent, Molokai Ranch, now known as Molokai Properties, Ltd.]

Requesting cert review by the Hawaii Supreme Court is a bit different than asking the U.S. Supreme Court to take your case.  Like that process, the Hawaii procedure asks the court …

Continue Reading HAWSCT Cert Briefs in Jurisdiction Case

Worth reading: “In an Age-Old Quest for Balance, an Uncertain Shift” from the New York Times, a story about the land use “Battle of Molokai Ranch” (as the story puts it). If you want to begin to understand the land use game in Hawaii, take a couple of minutes and read this article. [Disclosure: my firm represents Molokai Ranch — later today, I will post the latest Hawaii Supreme Court filings in the most recent case. Update: the briefs are posted here.]Continue Reading NY Times on Land and Power on Molokai

Good article at Slate by an ex-SCOTUSblogger, advocating for more “liberal group” amicus participation at the cert stage in cases before the U.S. Supreme Court, “The Early Brief Gets the Worm” —

When left-leaning groups ignore an opportunity to tell the court tohear the cases most likely to be decided in their favor, they are doingtheir causes a disservice.

The article also describes the U.S. Supreme Court’s caseload, and the daunting prospect of having your case be one of the select few that gets to make history that Term (9,000 cert petitions a year, 69 grants: you do the math). 

The author’s call for appellate advocacy by amici curiae(“friends of the court”) at all stages of important cases before theU.S. Supreme Court is equally valid in Hawaii appellate courts,especially now that the Intermediate Court of Appeals is the court offirst appeal and the Hawaii Supreme…

Continue Reading The Brief Amicus Curiae: How To Win Friends, And Influence Courts

In theory, Hawaii reveres agriculture: pre-western contact Hawaii was primarily an agrarian society, many of us trace our family’s history to the post-contact “plantation days,” and today, even environmental groups proclaim they support farmers and ranchers and want to “keep the country country.”  Who among us of a certain age didn’t work in the cannery or the fields during summer break, or doesn’t miss Arakawa’s? The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

But often the theory of agriculture runs headlong into the reality. For example, agricultural uses may be prohibited on ag land, an interisland ferry by which farmers can transport their goods to market is shut down by the courts due to environmental worries, and most…

Continue Reading Hawaii Agriculture at Risk: Water Law and Land Use

The State of Hawaii filed its merits brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008).  Download the brief here.

The U.S. Supreme Court is reviewing the decision of the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), which held that the resolution in which Congress apologized for the United States’ role in the overthrow of the Kingdom of Hawaii in 1893 prohibits the state from transferring the ceded lands until a political settlement is reached with native Hawaiians.

The Court is reviewing the following Question Presented:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow. The question here is whether…

Continue Reading State of Hawaii’s Merits Brief in SCOTUS Ceded Lands Case

Along with my Damon Key colleague Mark Murakami, I authored a commentary published today by the Honolulu Advertiser about the recent U.S. Supreme Court decision in the Navy sonar case, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008):

Ruling preserves Navy strength in defense

The United States has done more than any other country to protect whales, porpoises, seals and other marine mammals. In 1973, for example, Congress enacted the Marine Mammal Protection Act, a comprehensive law prohibiting hunting, killing, or even harassing them.

On Nov. 12, the U.S. Supreme Court balanced protecting marine mammals with the Navy’s use of sonar to detect silent diesel-electric submarines. In Winter v. Natural Resources Defense Council, the court voided strict rules imposed on sonar training in Southern California waters, declaring judges should hesitate before second-guessing the Navy’s judgment.

Environmentalists claimed mid-frequency active (MFA) sonar frightens or injures whales.

Continue Reading Our Honolulu Advertiser Op-ed on Navy Sonar Case

A panel of the Ninth Circuit has revised its earlier opinion in McClung v. City of Sumner, No. 07-35231 (Sep. 25, 2008), adding a footnote:

On slip Opinion page 13750, insert a new footnote 3 at the bottom of the page after the sentence that ends “. . . applies to Ordinance 1603.” (and renumber the subsequent footnotes) [page 15838 of the revised slip opinion]:

We observe that the ordinance before us concerns a permit condition designed to mitigate the adverse effects of the new development. New construction increases the burden on the City’s sewer system and increases the loss that might result from flooding. After experiencing considerable flooding, the City enacted Ordinance 1603 to require most new developments to include specified storm pipes. We are not confronted, therefore, with a legislative development condition designed to advance a wholly unrelated interest. We do not address whether Penn Central…

Continue Reading 9th Circuit: Revised Opinion in McClung v. City of Sumner

The U.S. Supreme Court today issued an order denying review of the Sixth Circuit’s decision in Braun v. Ann Arbor Charter Township, 519 F.3d 564 (6th Cir. 2008), a case we discussed here. The petition expressly asked the Court to overrule Williamson County. In San Remo Hotel, L.P. v. City & County of San Francisco,545 U.S. 323 (2005) four Justices wrote separately to note their belief that Williamson County should be revisited:

Finally, Williamson County‘sstate-litigation rule has created some real anomalies, justifying ourrevisiting the issue… I joined the opinion of the Court in Williamson County.But further reflection and experience lead me to think that thejustifications for its state-litigation requirement are suspect, whileits impact on takings plaintiffs is dramatic… In an appropriate case,I believe the Court should reconsider whether plaintiffs asserting aFifth Amendment takings claim based on the final decision of a state orlocal government…

Continue Reading Cert Denied in Braun

Check this out: an upcoming teleseminar on “Not in My Backyard (NIMBY): Development Resistance.”  “This teleconference will provide practical, actionable tools toanticipate and avoid community resistance to controversial land useprojects and to actively build community enthusiasm for the proposal.”  Sounds good to me.  For this and other land use-related lexicon, see NIMBYs, BANANAs, CAVEs and DUDEs. Continue Reading Teleconference on How to Deal With NIMBYs